Citation Nr: 1338794 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-05 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left knee disorder, to include as secondary to service-connected chondromalacia of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1997. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A review of the Veteran's Virtual VA claims file and the Veterans Benefits Management System reveals that all documents contained therein are duplicative of the records in his paper claims file or irrelevant to the issue on appeal. In January 2012, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. In February 2013, the Board reopened and remanded the issues of service connection for left knee and lumbar spinal disorders for further development. The Appeals Management Center (AMC) subsequently granted service connection for a lumbar spinal disorder in an April 2013 rating decision. As the AMC's April 2013 decision constitutes a full grant of the benefits sought on appeal, the claim of service connection for a lumbar spinal disorder is no longer before the Board. The appeal on the issue of service connection for a left knee disorder is again REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND During a March 2013 VA examination, the Veteran alleged that his current left knee disorder was caused by his service-connected right knee disability. However, the examiner did not provide an opinion as to whether the Veteran's current left knee disorder was caused or aggravated by his service-connected chondromalacia of the right knee. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional medical opinion is necessary in this case. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA would seek to provide and which evidence the claimant is to provide, is remandable error. In this case, it does not appear that the Veteran has been adequately notified in connection with his claim for service connection for a left knee disorder. In this regard, the record contains notice letters sent to him in connection with the claim. Those letters indicated what the evidence must show to establish service connection on a direct basis, informed him of the division of responsibilities in obtaining the evidence, and explained how disability ratings and effective dates are determined. However, those letters did not notify the Veteran of what evidence was necessary to substantiate a claim for service connection on a secondary basis. The Court has indicated that such specific notice is required to comply with the law. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Therefore, upon remand, the Veteran should be provided proper notice. Similarly, the Board notes that the statement of the case (SOC) and supplemental statement of the case did not include the regulations pertinent to secondary service connection claims, namely 38 C.F.R. § 3.310. Thus, upon remand, the Veteran should be furnished the applicable provisions in a SSOC. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter in connection with his claim for service connection for a left knee disorder. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. Specifically, the letter should notify him of the evidence necessary to substantiate the claim on both a direct and secondary basis. The letter should also explain how disability ratings and effective dates are determined. 2. The RO/AMC should request that the Veteran provide the names and addresses of any healthcare providers who have provided treatment for his left knee disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should be made for any outstanding VA treatment records. 3. After completing the foregoing development, the RO/AMC should refer the Veteran's claims folder to the March 2013 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion to determine the nature and etiology of any left knee disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran's service treatment records show that he complained of left knee pain in service beginning in 1996 and was treated for ligament strain. He has also contended that his left knee disorder is secondary to his service-connected chondromalacia patella of the right knee. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current left knee disorders. For each diagnosis identified, he or she should state whether it is at least as likely as not that the disorder is related to his injury and symptomatology in service or is otherwise causally or etiologically related to his military service. He or she should also opine whether it is at least as likely as not that the disorder is either caused by or aggravated by the Veteran's service-connected right knee disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).